DocketNumber: No. 09-P-239
Citation Numbers: 76 Mass. App. Ct. 598
Judges: Fecteau
Filed Date: 4/14/2010
Status: Precedential
Modified Date: 6/25/2022
The defendant appeals from a conviction following a jury-waived trial in the Superior Court for assault and battery upon a correction officer, in violation of G. L. c. 127, § 38B.
When his sentence expired, the defendant was determined to be a mentally ill person who required the strict custody of Bridgewater State Hospital and who would not receive similar care at any other Department of Mental Health facility. G. L. c. 123, §§ 7, 8. He continued to be held at Bridgewater State Hospital.
The issue on appeal is whether the defendant was a prisoner within the definition of the statute at the time of the assault. He contends that as a patient of the Bridgewater State Hospital under a civil commitment at the time of the assault he was not a “prisoner” for purposes of prosecution pursuant to G. L. c. 127, § 38B. We agree.
Discussion. The statute prohibits a “prisoner” from assaulting or battering an “officer, guard or other employee of any jail, house of correction or correctional institution” of the Commonwealth. G. L. c. 127, § 38B. The Commonwealth urges us to apply the statutory definition of “prisoner.” It argues that the defendant is “a committed offender and such other person as is placed in custody in a correctional facility [Bridgewater State Hospital, a part of Massachusetts Correctional Institution,
In Commonwealth v. Gillis, 448 Mass. 354, 360 (2007), the court held that persons committed to Bridgewater State Hospital under G. L. c. 123, §§ 7 and 8, who have completed a criminal sentence and have no pending charges, are not “prisoners” for purposes of a petition to determine whether that person is a sexually dangerous person pursuant to G. L. c. 123A. The reasoning of Gillis is persuasive in this case. The Gillis court determined that because G. L. c. 123A affects the defendant’s liberty interests, the statute’s language must be strictly construed. See Gillis, supra at 357, quoting from Commonwealth v. Beck, 187 Mass. 15, 17 (1904) (“[l]aws in derogation of the liberty or general rights, of the citizen . . . are to be strictly construed”).
In the present case, “[w]e are required by ordinary rules of statutory construction to construe any criminal statute strictly against the Commonwealth.” Commonwealth v. Wotan, 422 Mass. 740, 742 (1996), quoting from Commonwealth v. Gagnon, 387 Mass. 567, 569, S.C., 387 Mass. 768 (1982), cert. denied, 461 U.S. 921, and cert. denied, 464 U.S. 815 (1983). Therefore, as in Gillis, unless the statute “plainly and unambiguously” provides a definition otherwise, “[w]ords and phrases shall be construed according to the common and approved usage of the language . . . .” Gillis, supra at 358. There, the court refused to apply the broader statutory definition of “prisoner” as contained in G. L. c. 125, § 1 (m), to a person who was a civilly-committed patient at Bridgewater for the purposes of G. L. c. 123A.
As in Gillis, supra, G. L. c. 127 does not plainly and unambiguously define the word “prisoner.” Therefore, we must narrowly construe § 38B, and this “requires a construction of ‘prisoner’ that is no broader than its ordinary usage.” Gillis, supra at 359. The court in Gillis held that “[t]he word ‘prisoner,’ in its ‘common and approved usage,’ refers to an individual who is either serving a criminal sentence or awaiting trial.” Id. at 358-359. See Commonwealth v. Allen, 73 Mass. App. Ct. 862, 864 (2009) (“The fact that a person is in State custody is not enough to make him a ‘prisoner’ within the meaning of
The Commonwealth’s contention also fails to consider the narrow construction that we must apply to the meaning of the phrase “correctional institution.”
We view the defendant’s situation herein, as a civilly committed patient at Bridgewater State Hospital, to come within the scope of the court’s observation in Gillis that “the Commonwealth’s definition would make any mentally ill person placed at Bridgewater State Hospital a ‘prisoner.’ ” Gillis, supra at 360. We see no significant difference between the Commonwealth’s petition under G. L. c. 123A in Gillis and the Commonwealth’s prosecution of a similarly situated patient under the provisions of G. L. c. 127, § 38B.
So ordered.
General Laws c. 127, § 38B, as amended by St. 1992, c. 323, states, in relevant part: “[a] prisoner in any jail or house of correction, or in any correctional institution of the [C]ommonwealth who commits an assault or an assault and battery upon an officer, guard or other employee of any jail, house
The record shows that the defendant has been committed on several previous occasions to Bridgewater State Hospital, most frequently under G. L. c. 123, §§ 15(6) and 18(a).
The Commonwealth further points to statutory language that defines a State correctional facility as “any correctional facility owned, operated, administered or subject to the control of the [Djepartment of [Cjorrection, including but not limited to: . . . Massachusetts Correctional Institution, Bridgewater.” G. L. c. 125, § l(ra).
We are not persuaded that our decision here may create the appearance of an anomaly with respect to prosecution of assaultive behavior in Bridgewater
The defendant concedes that he might have been prosecuted under G. L. c. 265, § 13D, which applies to a civilian who assaults or batters any public employee. The elements of that crime are such that it is not a lesser included offense of G. L. c. 127, § 38B.